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Wilkins v. Sessions

United States District Court, D. South Carolina, Anderson/Greenwood Division

June 8, 2018

Valerie Wilkins, Plaintiff,
v.
Jeff Sessions, Attorney General of the United States, Defendant.

          REPORT AND RECOMMENDATION

          Kaymani D. West United States Magistrate Judge.

         Plaintiff Valerie Wilkins (“Plaintiff” or “Wilkins”), proceeding pro se, brings this action concerning her employment as a correctional worker/case manager at FCI Edgefield, a federal Bureau of Prisons (“BOP”) correctional facility located in South Carolina. Plaintiff brings this action against the Attorney General of the United States (“Defendant” or “Attorney General”), alleging she was “unlawfully discriminated against on the bases of parental status and reprisal . . .” and complains of “[h]arassment in a form of retaliation[.]” Am. Compl. 1-2, ECF No. 16. The court construes Plaintiff's Amended Complaint as bringing causes of action for discrimination, retaliation, and retaliatory hostile work environment pursuant to Title VII, 42 U.S.C. § 2000e. Discovery has been completed, and this matter comes before the court on Defendant's Motion for Summary Judgment, ECF No. 52, to which Plaintiff filed a response, ECF No. 57, and Defendant filed a reply, ECF No. 62. Having considered those briefs in light of applicable law, the undersigned submits this Report[1] recommending Defendant's Motion be granted in part and denied in part as discussed within.

         I. Factual Background[2]

         Many of Plaintiff's claims stem from a one-day suspension she received for failure to follow orders that resulted from “an exchange over overtime and the possible involuntary adjustment to [her] work schedule.” Am. Compl. 1 (emphasis in original).[3] As explained in his affidavit, Lt. Curtis Jones was the Operations Lieutenant on June 14, 2014, and he was to find a worker to fill a shift when someone had called in and would not be working.[4] Jones Aff., ECF No. 52-2. When no one volunteered to work overtime, Plaintiff's name was the next one up on the mandatory-overtime list. When Jones advised Plaintiff her name had come up and she was required to stay and work mandatory overtime, Plaintiff refused to comply. It is undisputed that Plaintiff did not give a reason for refusing to comply, nor did Jones ask for one. Jones asked Plaintiff whether she was aware she could be subject to discipline for refusing the order to work mandatory overtime, and she “said that she did [know that she could be subject to discipline] and she didn't care, and she'd deal with the Warden whenever the time came and she refused to work.” Id. at 4. Jones reported Plaintiff's refusal to work mandatory overtime, but he had no further involvement in the disciplinary action that followed. Id. Jones was unaware of Plaintiff's family status, or of her involvement in any EEO process prior to be advised by the interviewer who obtained his affidavit. Id. at 5.

         In her deposition, Plaintiff testified that Jones did not “ask” her to work the overtime, he “told” her to do so. Pl. Dep. 44, ECF No. 52-3. Jones was “very forceful[, ]” and “didn't ask [her] anything about why [she was] not able [to work the overtime].” Id. Jones advised Plaintiff there would be consequences for her refusing to take the overtime shift, and she told him she would “deal with those consequences later.” Id.[5]

         When asked in deposition why she had been unable to take the overtime shift, Plaintiff indicated it was because her “sister is incapacitated. I am the guardian of her and she has a sitter and we have to have her on the clock.” Pl. Dep. 44. Plaintiff indicated she would have required prior notice to fulfill any mandatory overtime and that she “requested at least 24 hours.” Id. Plaintiff also indicates she was already working a compressed work schedule (with 10-hour days) during the week that included June 14, 2014. ECF No. 57-2 at 25-26 (Pl. Timesheet for June 1-14, 2014 and Camp Staff Schedule for March 16-June 14, 2014). On June 25, 2014, Plaintiff submitted a memorandum complaining of “unprofessional Conduct” on the part of Lieutenant Carlotta Blackwelder concerning Blackwelder's June 21, 2014 comments to Plaintiff when Blackwelder overheard Plaintiff indicate she was “not interested” in working mandatory overtime. ECF No. 57-2 at 28-29 (Pl. ex. 21). Plaintiff indicates Blackwelder was referring to Plaintiff's refusal to work overtime on June 14, 2014 when she said the following to Plaintiff:

[I]t is not a matter of whether or not you're interested. “We will see, just as you said, “You will deal with the consequences later.” [Blackwelder's] response was in a retaliatory/bullying like tone, which is totally unprofessional.

ECF No. 57-2 at 28.

         On September 11, 2014, Plaintiff was called in before Lieutenant Vining, who advised her she was under investigation for “Failure to Follow Supervisor Instructions” on June 14, 2014. ECF No. 52-4 at 2; see ECF No. 52-4 at 6 (Sept. 11, 2014 “Warning and Assurance to Employee”). At that time, [6] Plaintiff was asked why she had been unable to stay and work overtime on June 14, 2014; she explained she was a caregiver for her incapacitated sister and she needed prior notice to make other arrangements. ECF No. 52-4 at 2. Plaintiff notes in her Complaint of Discrimination that Jones had not notified Plaintiff's supervisor, Mr. Koger, before “attempting to mandate [her] for impromptu overtime.” Id. Plaintiff also notes that Vining supervises Jones and Blackwelder, which, according to Plaintiff “presents itself as a strict conflict of interest[.]” Id.

         On January 8, 2015, Plaintiff received a letter from Unit Manager H. Koger III advising Plaintiff the agency-proposed discipline of a one-day suspension for the June 14, 2014 refusal to work overtime. ECF No. 52-4 at 19-20. The letter indicated Plaintiff's actions “constitute Failure to Follow Lieutenant's Orders and form the basis of the charge.” Id. at 7. It was noted that the Warden would make the final decision on the proposed discipline and that Plaintiff had 10 days within which she could reply to the Warden orally, in writing, or both, and include supporting documentation. Id. at 7-8.

         In a January 9, 2015 memo to Warden Linda Thomas, Plaintiff addressed the proposed suspension and charge concerning actions of June 14, 2014. ECF No. 52-4 at 9. Plaintiff explained she had been working a compressed schedule at that time and that she is the legal guardian of her sister and that prior notice is essential so that she could arrange for a caregiver to assist with her sister. Id.; see ECF No. 52-4 at 2.

         Plaintiff then “immediately” requested her disciplinary file from Human Resources, which she received on January 13, 2015, the day before she was to meet with Warden Thomas and HR Manager Carter. Id.

         Plaintiff met with Warden Thomas and HR Manager Carter on January 14, 2015, and provided documentation of her compressed work schedule during the week of June 14, 2014, which schedule meant she would have been unable to work the mandatory overtime at any rate. ECF No. 52-4 at 3. Plaintiff also provided paperwork indicating her guardianship over her sister and advised Warden Thomas that she needed 24-hours' advance notice in order to establish supervision for her sister. Id. at 3, 9; see also Id. at 11-18 (Feb. 5, 2015 minutes of the Jan. 14, 2015 meeting, typed by HR Manager Carter and signed by Plaintiff).

         On April 23, 2015, Plaintiff met with Warden Thomas to receive her decision on the proposed discipline. Warden Thomas decided to confirm the one-calendar-day suspension. Warden Thomas explained that, in her view, Plaintiff had failed to take responsibility for her actions. Further, Warden Thomas reminded her that she had not informed Lt. Jones of the reason she could not work overtime (that she needed to provide care for sister). ECF No. 52-4 at 3; see also Id. at 15-16 (Apr. 23, 2015 letter from Warden to Plaintiff). In her Complaint of Discrimination, Plaintiff notes that Warden Thomas did not take into account the fact that Plaintiff was working a compressed work schedule on June 14, 2014, or that Jones harassed her and did not, in Plaintiff's opinion, follow proper procedure. ECF No. 52-4 at 3.

         Plaintiff made a “Complaint of Discrimination” to the BOP's EEO Office. Complaint of Discrimination 2015-01801, ECF No. 52-4. The Complaint is dated April 27, 2015. Id. at 1. Plaintiff indicates the “date on which the most recent alleged discrimination took place” was April 23, 2015. Id. The Complaint Form included check boxes to identify the type of discrimination. Plaintiff checked the boxes for “Reprisal” and “Parental Status.” Id. In explaining the alleged discrimination, Plaintiff relayed events of June 14, 2014, and the telephone call she received from Jones advising her she was required to work mandatory overtime. Plaintiff informed Jones she was not able to work the mandatory overtime. Jones asked Plaintiff whether she was refusing to work; she responded, “No . . . I am not refusing, but I am not able to stay.” Id. (Plaintiff's quoting her own words; ellipses in original). Plaintiff also recounts the “unwelcomed retaliatory/bullying remarks” of Blackwelder that also took place on June 21, 2014. Id. at 2. Further, Plaintiff indicated that a “hostile/intimidating work environment” had been “fostered.” Id. at 1. The Complaint, completed on a BOP form, indicates Plaintiff's “date of first contact with EEO Office” was January 23, 2015, and that she received notice of final interview with EEO Counselor Zelford Thomas on May 15, 2015. ECF No. 52-4 at 1.[7] It is unclear what Plaintiff's purpose of contacting the EEO on January 23, 2015, might have been.

         Defendant also indicates the April 27, 2015 Complaint was Plaintiff's first time participating in EEO activity, Def. Mem. 4, which appears to be accurate based on the record. Nonetheless, the undersigned considers the January 23, 2015 date as Plaintiff's first contact with the EEO for purposes of this Motion.

         Plaintiff served the one-day suspension on April 29, 2015. ECF No. 52-4 at 17-18.

         Plaintiff filed an amendment to her Complaint for Retaliation, alleging four incidents of retaliation. EEO Amendment of Complaint for Retaliation, Complaint No: BOP 2015-1801, ECF No. 52-6. Plaintiff states that “[d]ue to [her] filing a complaint against the agency” she has experienced “more harassment from [her] superiors as well as [her] fellow co-workers and it has created additional work related undue stress and hostile work environment.” Id. at 1. The Amendment of Complaint in the record is undated; Defendant indicates Plaintiff amended the Complaint of Discrimination on July 18, 2015 to add the reprisal claim. Def. Mem. 4 (citing no additional documentation). Plaintiff's Amended Complaint of Retaliation indicates that, “[d]ue to” her filing a complaint against the BOP, she has “experience[ed] more harassment from [her] superiors as well as [her] fellow co-workers and it has created additional work related undue stress and hostile work environment.” ECF No. 52-6 at 1. Plaintiff claims these “professional conduct/acts include” the following:

(1) increased work assignment (2) Lower rating on Evaluation, (3) placed on AWOL, and (4) undermining my character/reputation to the inmate population to promote an unsafe environment.

ECF No. 52-6 at 1. Plaintiff also discusses additional allegedly retaliatory acts in responding to summary judgment. See generally Pl. Mem. Details of Plaintiff's claims of retaliation are included in the analysis of her retaliation claim below.

         In a May 20, 2016 Memorandum to Acting Warden K. Rogers, Plaintiff reported the “alleged misconduct of [her] supervisor Ms. Blakney, ” as to Blakney's improperly signing Plaintiff's “Program Review” paperwork to indicate Blakney was in attendance at those reviews even when Blakney was not present. ECF No. 57-2 at 71.

         In an August 5, 2016 Memorandum to SIS Lieutenant K. Vining regarding “Retaliation, ” Plaintiff seeks to “raise awareness [that] the misconduct/retaliatory behavior” of Blakney “continues.” ECF No. 57-2 at 10; see id. at 10-11. The memorandum focuses on alleged retaliation contained in Plaintiff's April 1 through June 30, 2016 evaluation.

         II. Standard of Review

         The court must liberally construe pleadings filed by pro se litigants. Cruz v. Beto, 405 U.S. 319, (1972). In considering a motion for summary judgment, the court's function is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction of a pro se plaintiff's complaint does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a claim. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Nor can the court assume the existence of a genuine issue of material fact when none exists. See Fed. R. Civ. P. 56(c).The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson, 477 U.S. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

         All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See Id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).

         B. Title VII

         A plaintiff may demonstrate a violation of Title VII through direct or circumstantial evidence. When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

         III. Analysis

         A. Title VII disparate treatment based on parental status

         In her Amended Complaint, Plaintiff claims she was “discriminated against on the basis of parental status and reprisal . . . .” Am. Compl. 1. Plaintiff references DOJ Policy Memorandum 2015-04, Prevention of Harassment in the Workplace, which indicates DOJ will have “zero tolerance” for harassment in the workplace, including harassment “based on sex, race, color, religion, national origin, gender identity, age, disability (physical or mental), genetic information, status of a parent, sexual orientation, marital status, political affiliation, or any other impermissible factor.” Oct. 9, 2015 Policy Mem., ECF No. 57-2 at 136.

         Defendant first seeks summary judgment to the extent Plaintiff relies on such a Policy Memorandum to establish a Title VII disparate treatment claim because parental status is not a protected class for Title VII purposes. Def. Mem. 10. Even if parental status were a protected class, Defendant argues, Plaintiff cannot demonstrate a prima facie case of disparate treatment as she has offered no evidence that her parental status played any role in her being written up and disciplined for refusing to work overtime. Id. at 10-11. Plaintiff does not respond to this portion of Defendant's argument.

         The undersigned agrees with Defendant. As an initial matter, although the Government has waived sovereign immunity as to Title VII claims from employees, nothing in Title VII has extended its reach to “parental status” as a protected class. Title VII provides in relevant part that it “shall be an unlawful employment practice for an employer” to:

discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]

42 U.S.C.A. § 2000e-2. Parental status is not included with one's “race, color, religion, sex, or national origin.” Nor is the undersigned aware of any other federal statutory scheme as to which the Government has waived sovereign immunity for an employment claim predicated on one's parental status. See, e.g., Eiler v. Kelly, No. 1:16-CV-285-WTL-DML, 2017 WL 977986, at *2 (S.D. Ind. Mar. 13, 2017) (“Absent an applicable statute, sovereign immunity bars claims of employment discrimination against a federal agency.” (citing Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976))). Departmental policy memoranda, such as the one referenced by Plaintiff, do not operate to waive sovereign immunity for purposes of suit in this court. See Benham v. Rice, Civ. A. 0301127(HHK), 2005 WL 691871 *3, (D.D.C. March 24, 2005) (noting an executive order that prohibits discrimination based on parental status did not waive sovereign immunity and confer federal-court jurisdiction as to claims resting on parental status); Letitia C., Complainant, EEOC DOC 0120170625, 2018 WL 1737364, at *8 (E.E.O.C. Mar. 20, 2018) (EEOC Ruling on discrimination complaint, noting “parental status is not protected by the statutes administered by this Commission.”).

         Accordingly, the analysis of any Title VII status-based claim need go no further because Plaintiff has not established that sovereign immunity has been waived to give this court jurisdiction over this discrimination claim based on parental status.

         In any event, assuming, arguendo, that parental status were a Title VII protected classification, Plaintiff's claim of disparate treatment/disparate discipline fails because there is no evidence that her parental status was a factor in her being reported or in her receiving discipline for not working the June 2014 overtime shift. Here, the court is unaware of any direct evidence that might establish discrimination based on parental status. It is undisputed that Plaintiff did not tell Jones anything about her parental status when she advised him she could not work the overtime shift. Further, Jones has indicated he was unaware of Plaintiff's parental status until he was advised in connection with discovery in this litigation.

         Absent direct evidence, Plaintiff would be required to set out a prima facie case under the burden-shifting scheme. Under the burden-shifting scheme announced in McDonnell Douglas, the three-step framework involved is that a plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. Evans v. Tech. App. & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996). If successful, then the defendant employer must present a legitimate, non-discriminatory reason for its employment action. Id. A plaintiff most often sets out a prima facie case of disparate discipline by providing evidence of the following: (1) that she engaged in prohibited conduct similar to that of a person of outside the protected class, and (2) that disciplinary measures enforced against her were more severe than those enforced against the other person. Lightner v. City of Wilmington, 545 F.3d 260, 264-65 (4th Cir. 2008). Thus, the task falls on Plaintiff to identify a suitable comparator, bearing in mind that “[t]he similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Bradley v. S.C. Dept. of Corr., C/A No. 3:08-2510-JFA, 2010 WL 883729 (D.S.C. March 5, 2010) (citing Lightner, 545 F.3d at 265). Here, Plaintiff has made no attempt to provide evidence of other ...


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